MacDonald et al. v. MacDonald et al., 2003 NSSC 8

• Judge: Moir, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 22, 2002
• Jurisdiction: Nova Scotia
• Citations: 2003 NSSC 8;(2003), 212 N.S.R.(2d) 1 (SC)

MacDonald v. MacDonald (2003), 212 N.S.R.(2d) 1 (SC);

 665 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2003] N.S.R.(2d) TBEd. FE.036

Darrell MacDonald, Sonia MacDonald and Clarine (Renee) MacDonald, of Ingonish Beach, County of Victoria, Province of Nova Scotia (plaintiffs) v. Eric MacDonald and Madonna MacDonald of Ingonish Beach, County of Victoria, Province of Nova Scotia (defendants)

(SN 113692; 2003 NSSC 8)

Indexed As: MacDonald et al. v. MacDonald et al.

Nova Scotia Supreme Court

Moir, J.

January 15, 2003.

Summary:

The plaintiffs were three of the four children of Clayton MacDonald. The de­fendants were his son and daughter-in-law. In October 1984, Clayton executed a deed in the defendants' favour conveying to them his home and land. The defendants built a home on a portion of the land. Clayton and the plaintiffs continued to reside in the home­stead. The defendants wanted to sell the property. The plaintiffs claimed that the deed was subject to a trust or collateral agreement.

The Nova Scotia Supreme Court granted the plaintiffs a declaratory judgment setting out the parties' respective interests in the land.

Evidence - Topic 1183

Relevant facts - Relevance and materiality - Res gestae - Accompanying acts or state­ments - General - Three siblings sued a fourth sibling (Eric) and his wife for a declaration that a deed conveyed to Eric by his late father was subject to a trust or collateral agreement - The plaintiffs of­fered evidence of a discussion said to have taken place shortly before the deed was executed in which the father is said to have expressed and Eric is said to have accepted stipulations for subdivision and recon­veyance of part of the land - Eric argued that this evidence constituted hear­say - The Nova Scotia Supreme Court admitted the evidence of the discussion both as an act or declaration of a party before making a conveyance - It was also admissible as a verbal act in distinction from hearsay, that was as "words which, when spoken, effect a legal result" and "as original evidence of the very fact in issue" - See paragraphs 3 and 4.

Evidence - Topic 1555

Hearsay rule - Exceptions - Statements against proprietary interest - [See Evidence - Topic 1183 ].

Sale of Land - Topic 1326

The contract - Necessity for writing - Gen­eral - Statute of Frauds - Circum­stances not within statute - [See Trusts - Topic 326 ].

Sale of Land - Topic 1329

The contract - Necessity for writing - Gen­eral - Statute of Frauds - Effect of fraud by person pleading statute - [See Trusts - Topic 326 ].

Trusts - Topic 326

Creation of trust - Methods of creation - By agreement - To devise - Three siblings sued a fourth sibling (Eric) and his wife for a declaration that a deed conveyed to Eric by his late father in 1984 was subject to a trust or collateral agreement - The Nova Scotia Supreme Court held that Eric received a deed to the homestead property based on an unwritten trust for his benefit and for that of his brother and sisters - He agreed with his father to convey half the lot to his brother, reserving life estates to his sisters - His retention of the whole was axiomatically a fraud - For years, Eric left his brother and sisters in possession of the lower half of the property including the homestead - He sought no rent and asserted no other right in reference to the part he was to have conveyed to his brother - Section 5(5) of the Statute of Frauds (N.S.), which required a written declaration or creation of trust in land, did not prevent enforcement of the unwritten trust in this case - See paragraphs 2 to 14.

Cases Noticed:

Fleet v. Farrell (1985), 71 N.S.R.(2d) 124; 171 A.P.R. 124 (C.A.), refd to. [para. 4].

Rochefoucauld v. Boustead, [1897] 1 Ch. 196 (C.A.), refd to. [para. 11].

Deglman v. Guaranty Trust Co. of Canada et al., [1954] 3 D.L.R. 785 (S.C.C.), folld. [para. 13].

Bollivar v. Hirtle Estate (1989), 93 N.S.R.(2d) 279; 242 A.P.R. 279 (Prob. Ct.), refd to. [para. 13].

Authors and Works Noticed:

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), paras. 6.215, 6.216 [para. 4].

Waters, D.W.M., The Law of Trusts in Canada (2nd Ed. 1984), pp. 208 to 215 [para. 11].

Counsel:

Alan J. Stanwick and Gerald X. MacKenzie, for the plaintiffs;

Hugh R. McLeod, for the defendants.

This action was heard at Sydney, N.S., on June 24-26, 2002 and last submissions on July 22, 2002, before Moir, J., of the Nova Scotia Supreme Court, who released the following decision on January 15, 2003.